Who's Gonna' Judge The Judges ?
By William Bailey (03/14/05)
In light of the recent ruling by the Supreme Court relative to the issue of execution for those under age 18, it occurs to me that it is timely to pose the question, “Who’s gonna’ judge the judges ?”
To say that the federal Judiciary is out of control would be the understatement of this new century.
While the question is timely, it is also timely to consult the document that created this Republic to see what it said about the three branches of government, with specific focus on the Judiciary.
Article III, Section 1 of the Constitution of the United States . . . “The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish”.
The Constitution continues, in Article III, Section 2 . . . “The judicial power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their authority . . . “ (Emphasis added).
The purpose of these thoughts is NOT to discuss the merits (or lack thereof) of the particular case that has caused the recent ruling . . . namely, the case of Christopher Simmons (age 17) who was convicted of murder. The purpose is to bring focus on two basic questions . . . 1) Has the time come to “rein” in the activist Federal courts; and, 2) Where, in the Constitution, does it provide for the Supreme Court (or other Courts) to use the laws of other countries in making their decisions ?
In considering this issue, I did the only thing I know to do when trying to determine what the intent was . . . consult the writings of those who are considered to be the founders of this Nation.
Alexander Hamilton, writing in Federalist Paper No. 78, had this to say:
“Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary , from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The Legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be requlated. The Judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the Executive arm even for the efficacy of its judgments.” (Emphasis added).
Hamilton continues:
“The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the Legislative body.”
It would seem (at least to me) that the Founders were inextricably clear in their intent and direction through the words of the Constitution, that the purpose of the Federal Courts (particularly the Supreme Court) was to interpret law not enact law.
It also seemed pertinent to see what the author of the Declaration of Independence, Thomas Jefferson, had to say on the subject of the Federal Judiciary.
In his autobiography (1821), Jefferson writes the following:
“Contrary to all correct example, [the Federal judiciary] are in the habit of going out of the question before them, to throw an anchor ahead and grapple further hold for future advances of power. They are then in fact the corps of sappers and miners, steadily working to undermine the independent rights of the States and to consolidate all power in the hands of that government in which they have so important a freehold estate.”
Jefferson, writing to Charles Hammond (1821) had this to say:
“It has long been my opinion, and I have never shrunk from its expression . . . that the germ of dissolution of our Federal Government is in the constitution of the Federal Judiciary---an irresponsible body (for impeachment is scarcely a scarecrow), working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief over the field of jurisdiction until all shall be usurped from the States and the government be consolidated into one. To this, I am opposed.”
In 1792, Jefferson wrote the following to Charles Hammond:
“The administration of justice is a branch of the sovereignty over a country and belongs exclusively to the nation inhabiting it. No foreign power can pretend to participate in their jurisdiction, or that their citizens received there are not subject to it.”
The recent ruling by the Supreme Court, overturned the laws of a number of the States. Of the 38 states that have capital punishment, 18 bar executions of those who murder before age 18. Simple math would seem to conclude that the laws of 20 states have been overturned by this ruling.
In 1798, Jefferson, in writing the “Draft Kentucky Resolutions”, had this to say:
“The Constitution of the United States [has] delegated to Congress a power to punish treason, counterfeiting the securities and current coin of the United States, piracies and felonies committed on the high seas, and offences (sic) against the law of nations, and no other crimes whatsoever. It [is] true as a general principle, and one of the amendments to the Constitution [has] also declared, that ‘the powers not delegated to the United States by this Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people’. Therefore, [all acts] which assume to create, define, or punish crimes other than those so enumerated in the Constitution are altogether void and of no force. The power to create, define, and punish such other crimes is reserved, and of right appertains to the respective States within its own territory.”
It is timely to seriously consider whether the Federal Judiciary has
gone afield from its Constitutional authority and if the conclusion be that it has, then what can be done about it ?
I believe that the answer to the first is a resounding “Yes”. I believe the answer to the second can be found in the document that founded this Nation . . . the Constitution of the United States. And, as with so many issues, I believe the answer is in the first three words, “We the people”.
Apparently, Thomas Jefferson believed the same. In writing to Spencer Roane in 1821, Jefferson had this to say:
“[It is] the people, to whom all authority belongs.”
Okay . . . how do “We the people” exercise the “authority” stated by Jefferson ? We elect all members of the Senate . . . the Senate has the responsibility to “advise and consent” (or to reject) nominees for the Federal Judiciary. So, the power of “the people” is not in short supply. We just have to use it.
We don’t use the power that is ours by sitting silent while some members of the Senate use the tool of the filibuster to keep the Senate from voting on judicial nominees. We don’t use the power by making it clear that we want judges who will interpret not enact laws. And, above all, we must insist that the members of ALL branches of government honor the oath of office to which they subscribed, “to support and defend the Constitution of the United States”.
The power is ours . . . how will we choose to use it ?
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